By now, almost everyone has heard the story of how Ebola made its way into the United States. The now-deceased Thomas Eric Duncan visited a Dallas emergency room on September 25, complaining of nausea, abdominal pain, dizziness, and headaches. He and a companion sat in an emergency room with 5-10 other patients for close to an hour before a triage nurse evaluated him. Mr. Duncan informed a nurse that he had recently been in Liberia, where Ebola had been raging. Despite this information and presenting with symptoms that could indeed be indicative of Ebola, hospital officials sent him home with antibiotics. A nurse did log the fact that he had recently been in Liberia. However, according to the Denver Post, there is no indication in his medical records whether this information was passed on to the treating physician. He was discharged early on September 26, just after his fever hit 103 degrees. After Mr. Duncan went home, he returned to the hospital three days later much sicker. This time, he was put in isolation at the hospital. He died on October 8 at age 42.
Texas Health Presbyterian Hospital has since apologized for misdiagnosing Mr. Duncan. But that apology may be too little, too late: according to the Denver Post, Duncan’s sister and nephew are considering a lawsuit. However, Texas enjoys one of the most doctor and provider-friendly tort reform laws in the nation, providing virtual immunity. Therefore, the difficulty of prevailing is quite high. Furthermore, if the family were able to prove negligence, they would then have to contend with a $250,000 cap on noneconomic damages that applies in almost all cases related to pain and suffering. His kin may still be able to recover lost wages; however, considering that Duncan was poor, a chauffeur from a war-ravaged country and hadn’t yet started working in the U.S., his family faces an uphill battle with a very uncertain outcome.
Texas Emergency Rooms are particularly shielded from medical malpractice suits. There, Plaintiffs must go the extra mile by demonstrating that the negligence in the ER was “willful and wanton.” Basically, the Plaintiffs would have to demonstrate that the providers knew what they were doing was going to cause harm. Still, some attorneys opine that, given the negligent, perhaps reckless, inaction of the hospital, combined with the ample warnings of the possibility of Ebola as well as Duncan’s initial dismissal, the hospital will end up settling.
Luckily Florida’s medical malpractice laws do not contain such strictures. In Florida, Plaintiffs must prove negligence in order to recover. While Florida did recently pass legislation to make proving negligence in medical malpractice claims more difficult, the standard for proving medical malpractice remains as negligence. Additionally, in a favorable ruling for potential plaintiffs, the Florida Supreme Court ruled that caps on Wrongful Death suits involving medical malpractice are unconstitutional. That ruling did not affect medical malpractice cases resulting in injury (the cap for those cases is $500,000 for noneconomic damages per claimant), which is still higher than the Lone Star State. Certain exceptions for that cap also exist. The cap for practitioners providing emergency room services resulting in injury in Florida is, generally, $150,000 per claimant.
If Ebola were to ever come to Florida, hopefully hospitals and practitioners would not make the same mistakes as Texas Health Presbyterian Hospital and the patient would be successfully isolated and treated (or transported to a facility that can treat him or her). However, if a Florida hospital were to make similar mistakes as this Texas hospital, our laws do provide greater protection for the families of victims of medical malpractice.
If your loved one has died as a result of medical malpractice, or you or a loved one have suffered injury as a result of medical malpractice, don’t delay: call Saunders Law Group to discuss your case with one of our skilled attorneys.
Sources: USA Today, Huffington Post, Denver Post, Florida statutes